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12
Court of Criminal Appeal 27 October 2005

R v Formosa

[2005] NSWCCA 363

Assault & violence
APPEAL AGAINST SEVERITY OF SENTENCE PLEA OF GUILTY PAROLE PERIOD PRINCIPLES OF PARITY IN SENTENCING CO OFFENDERS PLANNED, UNPROVOKED AND VICIOUS OFFENCE

Citation: R v Formosa [2005] NSWCCA 363
Court: NSW Court of Criminal Appeal
Date: 27 October 2005
Judge(s): Simpson J, McClellan CJ at CL, Hoeben J

Background

The applicant pleaded guilty in the District Court to maliciously inflicting grievous bodily harm whilst in company, contrary to s 35(2) of the Crimes Act 1900. The offence carried a maximum penalty of ten years' imprisonment. The attack occurred in the early hours of 11 January 2003, when the applicant and two others travelled from Tuggerah Lakes to a South Penrith workshop and residence occupied by the victim, who was known to the applicant through a former relationship.

The victim was beaten while asleep in the early hours, struck with a metal chair and a pole from a pedestal fan. His injuries were severe and lasting, including facial fractures, a closed head injury, permanent eye damage, post-traumatic stress disorder, and severe depression. His social, professional, and family life were significantly disrupted.

The sentencing judge, Viney ADCJ, imposed a head sentence of four years with a non-parole period of eighteen months, finding special circumstances that justified a very substantial departure from the statutory ratio. The applicant then sought leave to appeal on the grounds that the sentence was manifestly excessive, that insufficient weight was given to his subjective circumstances, and that the parity principle required a lesser sentence given the treatment of his co-offender, Colin Wood.

  • Whether the sentencing judge gave adequate weight to the applicant's favourable subjective circumstances, including his prior clear criminal record and the personal factors that gave rise to the offence.
  • Whether the parity principle in sentencing required the court to reduce the applicant's sentence to account for the more lenient outcome received by the co-offender, Colin Wood.
  • Whether the parity principle can apply where the disparity between co-offenders results from a difference in the charges laid by the prosecution, rather than from a difference in the sentences imposed for equivalent conduct.
  • Whether the sentence of four years with an eighteen-month non-parole period was manifestly excessive.

Decision

Subjective circumstances: The Court acknowledged the applicant's strong subjective case, including his lack of prior criminal history, the personal precipitant for the offending (jealousy arising from his former partner's relationship with the victim), and other favourable factors presented through character evidence and a psychiatric report. The sentencing judge had taken these matters into account, and the non-parole period was set at half what it would otherwise have been due to the finding of special circumstances. The Court found no error in this approach.

Parity and the charging disparity: Colin Wood had been charged only as an accessory after the fact, an offence carrying a maximum of five years. The Court observed that, on the facts before the sentencing judge in Wood's matter, a more serious charge would plainly have been open to the prosecution. However, the parity principle operates to address disparities in sentences imposed for comparable offending, not disparities that flow from prosecutorial decisions about what charges to lay. The Court held that parity considerations do not, and cannot, extend to differences arising from the charging process itself.

Manifest excess: The Court rejected the submission that the sentence was manifestly excessive. It accepted that the applicable starting point before the guilty plea discount was approximately five years. Given that the offence was planned, unprovoked, and violent in its execution, with serious and lasting consequences for the victim, the Court found that a five-year sentence after trial would not have been set aside as excessive. The resulting four-year sentence, reflecting a 20% discount for the plea of guilty, was therefore not excessive.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The parity principle in sentencing applies to disparities in sentences imposed on co-offenders for comparable conduct. The Court of Criminal Appeal confirmed it does not apply where the disparity arises from the prosecution's decision to charge co-offenders differently.
  • Where a co-offender has been charged with a lesser offence, the sentencing court is confined to sentencing that person for the offence actually before it, regardless of whether more serious charges might have been available.
  • A very substantial departure from the statutory non-parole period ratio (here, halving the non-parole period) can constitute sufficient recognition of special circumstances and favourable subjective factors, even where the offence is serious.
  • In dismissing the appeal, the Court reinforced that the gravity of the objective circumstances, including the planned and unprovoked nature of the attack and its lasting physical and psychological consequences for the victim, can outweigh otherwise strong subjective factors when assessing whether a sentence is manifestly excessive.
  • No error was established in the sentencing judge's approach to weighing the applicant's subjective case, including his prior clear record and the personal circumstances said to have precipitated the offending.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 35(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)

Cases:
- Lowe v The Queen [1984] HCA 46; 154 CLR 606
- Postiglione v The Queen [1997] HCA 26; 189 CLR 295
- R v Gerald Kerr [2003] NSWCCA 234
- R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
- R v Ziggy Hauser [1997] NSWCCA (unreported, 11 December 1997)
- The Queen v De Simoni [1981] HCA 31; 147 CLR 383